Citation NR: 9713391
Decision Date: 04/17/97 Archive Date: 04/29/97
DOCKET NO. 96-48 735 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to payment of unauthorized medical expenses
incurred from June 11, 1996, to June 17, 1996, at St.
Joseph's Medical Center.
ATTORNEY FOR THE BOARD
John D. Nachmann, Associate Counsel
INTRODUCTION
The veteran had active naval service from January 1969 to
December 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision of September 1996 by the
Department of Veterans Affairs (VA) Medical Center (VAMC) in
Fort Wayne, Indiana.
In his September 1996 notice of disagreement as well as his
December 1996 substantive appeal, the veteran raised the
issues of entitlement to payment of unauthorized medical
expenses incurred from June 24, 1996, to July 2, 1996, at St.
Joseph's Medical Center and entitlement to payment of
unauthorized medical expenses incurred from August 18, 1996,
to September 4, 1996, at St. Joseph's Medical Center. These
issues have not been developed or certified for appellate
consideration and are therefore referred to the RO for
appropriate action.
The Board notes that the Vice Chairman of the Board, in an
order dated in March 1997, granted the Board's motion to
advance the veteran's case on the Board's docket due to an
administrative error. See 38 U.S.C.A. § 7107(a)(2);
38 C.F.R. § 20.900(c).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO was incorrect in not
granting the benefit sought on appeal. He maintains that the
VA should pay for expenses associated with his
hospitalization from June 11, 1996, to June 17, 1996, at St.
Joseph's Medical Center because he was hospitalized due to an
emergency. Therefore, he requests a favorable determination
by the Board.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
a well-grounded claim of entitlement to payment of
unauthorized medical expenses incurred from June 11, 1996, to
June 17, 1996, at St. Joseph's Medical Center.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. Service connection is in effect for diabetes mellitus,
polyneuropathy of the upper and lower extremities, renal
insufficiency with hypertension, and gastroparesis.
3. The veteran's hospitalization from June 11, 1996, to June
17, 1996, at St. Joseph's Medical Center was not necessitated
by a medical emergency.
CONCLUSION OF LAW
The veteran's claim of entitlement to payment of unauthorized
medical expenses incurred from June 11, 1996, to June 17,
1996, at St. Joseph's Medical Center is not well grounded.
38 U.S.C.A. §§ 1728, 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question to be answered is whether the veteran
has presented a well-grounded claim, that is, one that is
plausible or capable of substantiation. Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). Although the claim need not be
conclusive, it must be accompanied by supporting evidence.
An allegation alone is not sufficient. Tirpak v. Derwinski,
2 Vet.App. 609, 611 (1992).
Service connection has been established for diabetes
mellitus, polyneuropathy of the upper and lower extremities,
renal insufficiency with hypertension, and gastroparesis.
Records from St. Joseph's Medical Center indicate that the
veteran was hospitalized from June 11, 1996, to June 17,
1996. During this time, the veteran was given an evaluation
and then underwent debridement of a left heel ulcer.
Postoperatively, the veteran underwent physical therapy.
An August 1996 VA fee hospital/emergency claim completed by
V. N. Vitalpur, M.D., reveals that the veteran's
hospitalization at St. Joseph's Medical Center from June 11,
1996, to June 17, 1996, was for a service-connected or
adjunct condition, was not emergent in nature, and that VA
facilities were feasibly available without placing the
veteran in a hazardous situation.
Under the law, the Secretary may reimburse veterans entitled
to hospital care or medical services for the reasonable value
of such care or services for which such veterans have made
payment, from sources other than the department, where the
treatment was either: (1) for an adjudicated service-
connected disability, or (2) for a nonservice-connected
disability associated with and held to be aggravating an
adjudicated service-connected disability, or (3) for any
disability of a veteran who has a total disability, permanent
in nature, resulting from a service-connected disability; and
(b) that a medical emergency existed of such nature that
delay would have been hazardous to life or health; and (c)
that no VA or other Federal facilities were feasibly
available and an attempt to use them beforehand or obtain
prior VA authorization for the services required would not
have been reasonable, sound, wise, or practicable, or
treatment had been or would have been refused. 38 U.S.C.A.
§ 1728.
Based upon a thorough review of the evidence of record, the
Board concludes that the veteran has not submitted a well-
grounded claim of entitlement to payment of unauthorized
medical expenses incurred from June 11, 1996, to June 17,
1996, at St. Joseph's Medical Center. In this regard, the
Board notes that the August 1996 opinion from Dr. Vitalpur
indicates that the veteran's hospitalization was not emergent
in nature and that VA facilities were feasibly available
without placing the veteran in a hazardous situation.
Although the veteran contends that his hospitalization was
due to an emergency, specifically for treatment of a left
foot ulcer, he, as a layman, is not competent to address
issues requiring expert opinion. See Espiritu v. Derwinski,
2 Vet.App. 492, 494-95 (1992).
Accordingly, it is the judgment of the Board that the veteran
has failed to meet his initial burden of submitting evidence
of a well-grounded claim of entitlement to service connection
for payment of unauthorized medical expenses incurred from
June 11, 1996, to June 17, 1996, at St. Joseph's Medical
Center. In reaching its determination, the Board recognizes
that this issue is being disposed of in a manner that differs
from that used by the RO. The Board has therefore considered
whether the veteran has been given adequate notice to
respond, and if not, whether he has been prejudiced thereby.
See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). The Board
concludes that the veteran has not been prejudiced; for
purposes of a future claim, the difference between evidence
required to render a claim well grounded and that required to
reopen a previously disallowed claim because of “new and
material” evidence appears to be slight. See Edenfield v.
Brown, 8 Vet.App. 384, 390 (1995) (en banc).
The Board views its foregoing discussion as sufficient to
inform the veteran of the elements necessary to complete his
application for service connection for payment of
unauthorized medical expenses incurred from June 11, 1996, to
June 17, 1996, at St. Joseph's Medical Center. See Robinette
v. Brown, 8 Vet.App. 69, 77-78 (1995).
ORDER
Payment of unauthorized medical expenses incurred from June
11, 1996, to June 17, 1996, at St. Joseph's Medical Center is
denied.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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